Pilots in NL prosecuted and found guilty for disturbing wildlife

[BackPacker]

Just a warning to you all about the current state of legislation in the Netherlands. I'm not proud of it but I do think this needs to be made more public.

AOPA Netherlands - Hoger beroep Oostvaardersplassen

I did not find an English translation, unfortunately. Here's a loose translation:

2 pilots have been found guilty of disturbing wildlife in the court of law under the "Flora and Faunawet" (wildlife act). They were flying at approx. 1450 feet over the "Oostvaardersplassen", which is a nature reserve under Natura-2000. (Natura-2000 is the result of European legislation that requires the member states to identify important wildlife areas and protect these.) The aeronautical charts for this area identify a recommended minimum altitude of 1000 feet, while class A airspace (Schiphol TMA) starts at 1500 feet.

So the pilots were completely adhering to aviation laws and best practices. Something the judge admitted. Nevertheless, he found them guilty of breaching the Flora- and Faunawet, and fined each of them 250 euros. They now also have a penal record.

The judge admitted that this is a case of conflicting laws, particularly since the Flora and Faunawet does not have a vertical limit. But this was not a reason for getting these pilots acquitted. Instead, the judge called onto the government to resolve this conflict as soon as possible. Obviously AOPA, KNVvL and a host of other organizations will appeal this decision, as this can have major consequences, not just for GA but for CAT too. (ATC normally vectors planes inbound to Schiphol at 2000 feet over this same area.)

Here's a map of all Nature reserves under Natura-2000 by the way:

Ministerie van Landbouw, Natuur en Voedselkwaliteit - Natuurwetgeving - Gebieden

[Ryan5252]

Surely a case for their defense would have been that they flew as far away as possible for the protected area whilst placing their aircraft only 50' of Class A. Further to this, although I am only speculating, was both the Aircraft and Pilot in Command capable of legally entering Class A? If not then their hands are tied and a case is to heard against the relevant authority for placing the lower limit of Class A in such a way it conflicts with pre-existing limits.
Also, I would wonder what was the actual impact to the wildlife? Was there any loss of life to the stock?
Just my own observations from an outsider not familair with the case or indeed to prevailing laws.

Cheers

[Donalk]

I must be missing something - in order to secure a conviction they must have contravened some statute. Is there a statutory prohibition on overflying this reserve?

[BackPacker]

Further to this, although I am only speculating, was both the Aircraft and Pilot in Command capable of legally entering Class A?

Even if the pilots and planes were IFR capable, you don't get to enter the Schiphol TMA over there without a very, very good cause.

And under the act you can be prosecuted for "disturbing" wildlife. So if one bird takes flight while you are flying over and one of the park rangers suspects a causal relationship between the two, you're screwed.

If they can read your callsign, that is, because this particular area currently happens to be in/under the Schiphol SRZ so your mode-S transponder, while mandatory, has to be switched off.

Is there a statutory prohibition on overflying this reserve?

No, but there is a statutory prohibition on disturbing the wildlife in this reserve. And that statue has no vertical limits. Theoretically you could be prosecuted while overflying this reserve at FL300, as long as a park ranger finds that you disturbed an animal. And that's why this case is so important: We're trying to establish what the vertical limits of this wildlife act are.

And remember that this is not just some local Dutch case. This legislation was all forced upon us by EU legislation so at some point in time the same crazy lawsuits may happen in other EU countries. What gets decided here may well be influential in how similar laws in other countries may be interpreted.

If not then their hands are tied and a case is to heard against the relevant authority for placing the lower limit of Class A in such a way it conflicts with pre-existing limits.

Although the judge noted that the laws clearly conflict, and called upon the Dutch government to resolve this situation, I suspect that this rather low-level judge was simply not legally able to weigh one law against another. The public prosecutor was basically able to prove that the wildlife was disturbed in the legal sense of the wildlife act, so the judge at this level had no other way than to find the defendants guilty. That they were conforming to all aviation laws and customs at the time was not deemed a valid defence.

(I guess it's kinda similar to performing a drive-by shooting and then using the fact that you adhered to the speed limit at the time, so were complying with road transportation laws, to claim you cannot be prosecuted for murder.)

Weighing laws against each other and thereby establishing limits on the reach of various laws is handled higher up. So hopefully this is just the opening move.

[Donalk]

Thanks for the clarification. This seems to be a particularly harsh judgement which relies on testimony from people on the ground to prove that wildlife were disturbed in some way. Surely a low flying hawk would cause a lot more distress to the locals.

Looking at the nature reserve map is a bit daunting as there is virtually no way of avoiding them on any trip. I fly in NL quite a bit and love the area but may have to be more 'selective' in future.

[Jim59]

I recently flew over Netherlands with a mode a/c (not s) transponder. You may not turn it on in Dutch airspace. More to the point you may not fly above 1200'. With a mode s transponder switched off (as required under TMA) you can fly higher!!!!!!!!

[BackPacker]

which relies on testimony from people on the ground

Actually most park rangers in the Netherlands have a "buitengewone opsporingsbevoegdheid" which means that their testimony, as long as it is within their field of expertise, is admissible as evidence in court, similar to the statements of a police officer.

That's what happened here too. The conviction was purely based on the testimony of those park rangers that wildlife was disturbed by the passing aircraft.

[BackPacker]

I recently flew over Netherlands with a mode a/c (not s) transponder. You may not turn it on in Dutch airspace. More to the point you may not fly above 1200'. With a mode s transponder switched off (as required under TMA) you can fly higher!!!!!!!!

Bit off-topic but you can't go higher there. From 1200' to 1500' you're in the SRZ Schiphol which is not allowed unless you have PPR (which is only given if you've got a good reason) and from 1500' upwards you're in the Schiphol TMA which is class A.

Outside the lateral limits of the Schiphol TMA / SRZ Schiphol you can go above 1200' with a working mode-S transponder only, according to the rules, but it's relatively easy to get a waiver for a transit through the Netherlands with just a mode A/C transponder.

[wsmempson]

I fly all over europe, but now give Holland a very wide berth. I can only assume, judging from the volume of cockeyed and misconceived legislation being churned out recently (mandatory ELT's (no PLB's,) Mandatory mode-s (as long as it's switched off) etc), that the Dutch CAA are skunked off their faces....

[Donalk]

that the Dutch CAA are skunked off their faces....

Maybe, maybe not. It does take a bit more planning but the Dutch have a willingness to be flexible in most cases. Besides it's too nice a country to avoid because of a few mindless bureaucrats.

[Jim59]

it's relatively easy to get a waiver for a transit through the Netherlands with just a mode A/C transponder.

You don't need a waiver if you remain outside all controlled airspace and below 1200', but do otherwise. I requested one three weeks in advance and was refused, so it's not that easy!.

[Johnm]

Presumably if you were walking there and the wildlife took to the air you would suffer the same fate, the rangers must be up before the judge almost daily......

Anything utterly incomprehensible is referred to as "double dutch" in the UK, I'm beginning to understand why!

[IO540]

Presumably if you are IFR then they will have to sue ATC

Thankfully I don't have to fly VFR to some places anymore... I highly recommend the IR for hassle minimisation.

[er340790]

Used to fly XC up to that area from EHBK (think the island was called Ameland or something) and was warned about the Dutch equivalent of RSPB being anal in the extreme. They would report anyone whose number they could read as a matter of routine. I think my N reg PA-28 probably helped there. To be honest I was more concerned keeping under the Class A 1500' limit. One trick I used was to pop into Budel (EHBD) on the way home and do a couple of T&Gs. Get lost in all that ATC chatter.

[vanHorck]

Where does it say in the wildlife act that above 1500 ft it's ok to fly!?

Surely all IFR flights above are indeed at fault too!

[Katamarino]

Looking at that map, I am a little scared about even taking off from Rotterdam with these ridiculous Ranger jobsbodies around. If they apply this universally, it will not be possible to fly in Holland.

Of course, in a country where my friend can be fined for crossing a red light on her bike, when she hadn't actually crossed that road (she only started her journey at a point between the police office who 'saw' her at the light in question, and the one he apparently radioed to stop her), I am not at all surprised at the Judge's decision, or the actions of the Rangers.

It's a shame; I love the North of Holland as a place to fly, Texel and Ameland are wonderful! And ATC are universally helpful; lets hope they can sort out this absurd situation.

[Piper19]

I feel sorry for all these general aviation pilots in NL. I frequently fly there, but last years it's getting worse and worse. Unbelieveable high fees at airports, most airports that are not being closed only think about profit and they don't find it in small aviation. So they just ban them. Very strong green force there, political overruled and oversanctioned country.
I strongly hope NL is not an example of the future of EU general aviation. One of my first flights was to Rotterdam, I remember the apron being full of little Cessna's and Pipers. Something else today.
Their air force is doing better than ours though

[BackPacker]

One of my first flights was to Rotterdam, I remember the apron being full of little Cessna's and Pipers. Something else today.

Well, the apron is needed for the Transavia 737s and VLM F50s, but GA at Rotterdam is alive and well. The Vliegclub Rotterdam owns about 17 planes (Pipers, Cessnas, Robins and a Diamond), the RAC has something like three planes (Warriors nowadays - their Diamonds are in storage at Lelystad due to an entirely different reason called Thielert), there's a parachute club, a few commercial operators with small planes for sightseeing and banner towing, and at least something in the neighbourhood of 25-30 private planes scattered around the F-apron and along the L-taxiway.

So GA at Rotterdam is still very much alive and kicking, and GA is in fact still responsible for the far majority of movements at Rotterdam.

[Katamarino]

I have flown into all except three of the Civil airfields in Holland, one of which is Schipol. With the exception of Eindhoven, which we shall not talk about, I found most of them very welcoming, with great facilities, and a huge amount of GA, despite the expense of getting airbourne here! Admittedly, the fact that in less than two years I have managed to visit all except three speaks volumes about the low number of airports; I really miss the uncontrolled farm strip type of flying in the UK. Every airport here is controlled.

I really hope that we can keep the great GA locations that we do have here; a day spent at Texel watching the skydivers from the cafe is a nice way to spend a summer Sunday, and flying in and out of Rotterdam amongst the 737s is a great experience.

[IO540]

Most expensive avgas this side of Turkey though